Citation Nr: 9836663
Decision Date: 12/16/98 Archive Date: 12/30/98
DOCKET NO. 97-28 649 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
December 1968.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from a February 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas, which denied the claim.
A videoconference hearing was held before the undersigned
Board Member in August 1998, a transcript of which is of
record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has several disabilities that
are permanent and disabling, including problems with his
stomach, heart, and both lungs among other things. He
maintains that the severity of his disabilities prevent him
from being employed in any gainful and substantial
occupation, or participate in any substantial activity.
Thus, he believes that he is entitled to a permanent and
total disability rating for pension purposes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports a
permanent and total disability rating for pension purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal on the issue of
entitlement to a permanent and total disability rating for
pension purposes has been obtained by the RO.
2. The veteran was born in March 1943, he has an 11th or 12th
grade education, he has worked as a bricklayer, and
reportedly last worked sometime in 1993 or 1994.
3. The RO has rated the veteran’s disabilities as follows:
hemorrhoids, evaluated as 20 percent disabling; chronic
obstructive pulmonary disease (COPD), evaluated as 10 percent
disabling; hypertension, evaluated as 10 percent disabling;
status post right-sided ischemic attack, evaluated as 10
percent disabling; chronic eczema of face, arms, and legs,
evaluated as 10 percent disabling; chronic gastritis with
hyperplastic polyp, evaluated as 10 percent disabling; low
back pain, evaluated as 10 percent disabling; and fatty
liver, which is assigned a noncompensable (zero percent)
disability rating. The combined rating for the veteran’s
disabilities is 60 percent.
4. The veteran has testified that his most severe disability
involves difficulty breathing, presumably related to his
COPD.
5. The objective medical evidence supports the currently
assigned ratings for the veteran’s hemorrhoids, hypertension,
status post right-sided ischemic attack, chronic eczema,
chronic gastritis, and fatty liver. However, the objective
medical evidence shows that the veteran’s COPD should be
rated as 60 percent disabling, and his low back disability
should be rated as 20 percent disabling. As a result, the
veteran would be entitled to a combined rating of 80 percent
for his disabilities.
6. The veteran's disabilities preclude him from engaging in
substantially gainful employment considering his age,
education and employment experience.
CONCLUSION OF LAW
The criteria for a permanent and total disability rating for
pension purposes have been met. 38 U.S.C.A. § 1502, 5107
(West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.16, 4.17 (1998);
Brown v. Derwinski, 2 Vet. App. 444 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
General Background. The evidence on file shows that the
veteran was born in March 1943. In December 1996, the
veteran submitted a VA Form 21-527, Income-Net Worth and
Employment Statement. He reported that he had a high school
education, and that he had been unemployed since 1994.
Additionally, he reported that he had been treated in the
past twelve months for heart and back problems, as well as a
stroke. He reported that he had been treated at the VA
medical facility in Houston, Texas, for these conditions.
Medical records were subsequently obtained from the Houston
VA Medical Center (VAMC), which covered the period from
September 1992 to December 1996. These records show
treatment for hearing problems, hemorrhoids, skin problems,
and vision problems, among other things. Various records
also noted a history of hypertension, and that the veteran
was taking medications to control the condition.
In a February 1997 rating decision, the RO denied entitlement
to nonservice-connected pension, as well as extra-schedular
entitlement to pension under the provisions of 38 C.F.R.
§ 3.321(b)(2). At the time, the veteran’s disabilities were
identified as status post right-sided ischemic attack,
cortical type; hypertension; eczema; hemorrhoids; back
problems; and hyperplastic polyp. The RO held that the
veteran did not meet the criteria for a permanent and total
disability for pension purposes. Further, the RO found that
the veteran had not established extra-schedular entitlement
to pension taking into consideration such factors as the
degree and nature of the disabilities, the veteran’s age,
educational and occupational background, or other factors
pertinent to the individual case.
The veteran appealed the above decision to the Board.
Additional medical records were obtained from the Houston
VAMC, which covered the period from December 1996 to October
1997. These records show treatment for breathing problems,
hepatitis A, heart problems, chest pains, stomach problems,
skin problems, and vision problems, among other things.
The veteran underwent various VA medical examinations in
December 1997 and January 1998.
In December 1997, the veteran underwent a general VA medical
examination to include evaluation of his respiratory, heart,
hypertension, rectum and anus conditions. The veteran’s C-
file was available and reviewed. Regarding his educational
and occupational history, the veteran reported that he
attended the 11th grade. After his discharge from the
military, he reportedly did “[o]dds and ends.” He reported
that he worked as a bricklayer for a while, and last worked
in 1993. With respect to his medical history, the veteran
reported that he never had any operations or surgeries. When
asked what his major health problems were, the veteran
reported that his back bothered him all the time, and that he
could not bend over without pain and discomfort.
Additionally, he stated that he became tired and dizzy
whenever he tried to do anything for any length of time more
than three or four minutes. The veteran also stated that his
stomach hurt all the time, and that his chest hurt whenever
he rubbed the skin. He stated that his mouth tasted like
copper pennies all the time. Further, he reported that he
has been taking blood pressure medicine for the past four
years. He reported that his doctor told him two months ago
that he had hepatitis A. The veteran also stated that he had
lots of seborrhea and scales on his face. He denied malaria,
tuberculosis, diabetes, seizures, ulcers, broken bones, or
kidney disease. The veteran did complain of hemorrhoid pain,
swelling and bleeding. According to the computer, the
veteran was taking the following medications: Maalox,
amcinonide, aspirin, captopril, coal tar, dibucaine, digoxin,
diphenhydramine, docusate, furosemide, hemorrhoid
suppositories, hexavitamin, hydrochlorothiazide,
hydrocortisone, ibuprofen, methocarbamol, psyllium, and
triamcinolone. The veteran asserted that he had never had a
heart catheterization. He also reported that he could only
walk 700 to 1,000 feet before he had to stop due to shortness
of breath. He reported that this has been the situation ever
since he had his heart attack in 1993. The veteran also had
a stroke in 1995, where he experienced numbness on the
“left” side, and reported that the “left” side of his face
continues to get numb from time to time. Moreover, he stated
that he hurt his back while doing KP, and was given a brace.
The VA examiner reviewed pertinent findings in both the in-
service and post-service medical records. Among other
things, he noted that an ultrasound conducted in “October
1997” showed probable fatty infiltration of the liver.
Also, an MRI of the lumbar spine, conducted in December 1997,
showed mild to moderate multi-level disc disease of the
lumbar spine, with no frank spinal stenosis or neuroforaminen
stenosis and no focal disc protrusions. There was a small
L4-5 disc bulge.
On physical examination, the examiner found the veteran to be
a well-developed, well-nourished, overweight male who
appeared older than his stated age. His blood pressure was
107/68, his pulse was 76, and his respirations were 12. The
examiner noted that the veteran had glasses on, and that the
pupils were equal, round, and reacted to light and
accommodation. Extraocular movements were normal; the
sclerae clear; tympanic membranes intact, and the nose
normal. The examiner found no lesions with respect to the
oropharynx. In regard to the veteran’s neck, he found no
thyroid enlargement. The veteran’s lungs were clear to
auscultation without rales, rhonchi, or wheezes. His heart
had a regular rhythm with a soft, grade 1/6 dystolic murmur
at the left sternal border, barely audible. His abdomen was
soft with no organomegaly, no DVA tenderness, bowel sounds
normal. On rectal examination, the examiner found two large
external hemorrhoids, tender to the touch. They were located
at 12:00 o’clock and 4:00 o’clock. They were not bleeding.
The veteran’s stool guaiac was negative. Neither his
genitals nor prostate was examined. The examiner found the
veteran to have good peripheral pulses. He also found the
veteran to have extremely dry skin, especially on his shins
and arms. There was also evidence of seborrheic dermatitis
in the scalp and ears. However, there was no peripheral
edema, cyanosis or clubbing.
Based on the foregoing the examiner assessed COPD, and noted
that pulmonary function tests showed mild restrictive
disease. However, a review of the examination report does
not show that these tests were performed at the examination.
The examiner also assessed hypertension, which he found to
currently by normotensive due to medications. He also
assessed painful external hemorrhoids, which he noted were
not currently bleeding; status post “right-sided” transient
ischemic attack, which he referred to neurology examination;
chronic eczema of arms and legs; history of hyperplastic
polyp on colonoscopy; and chronic low back pain.
A VA bones examination was also conducted in December 1997.
It was again noted that the veteran reportedly began to
experience back pain in basic training while on KP duty. The
veteran described the pain as transversely across his back in
the lumbosacral region, and he complained of limited range of
motion with occasional stiffness in his back. The VA
examiner also noted that the results of the lumbar spine MRI
which was conducted three weeks earlier had been forwarded to
him. He noted that it appeared that the veteran was
minimally symptomatic with regard to his back. The veteran
reported that he took ibuprofen on an as needed basis. On
physical examination, the examiner found the veteran to be a
well-developed, well-nourished gentleman of apparent stated
age, in no acute distress. The veteran moved about the room
easily. With respect to range of motion of the lumbar spine,
the examiner found that the veteran had 80 degrees of
flexion. Toe and heel walking were normal. Neurological
evaluation revealed physiologic and symmetric reflexes and
sensation in both lower extremities, internal and external
rotation, normal hips and pulse. Straight leg raising was
negative bilaterally. X-rays were also conducted at this
examination, which revealed minimal degenerative changes,
primarily at L3-4 and L2-3. The disc spaces appeared well-
maintained. Also, MRI showed diffuse degenerative disc
disease, but no evidence of stenosis, disc protrusion, or
disc herniation. The veteran’s foramen appeared patent as
well.
The examiner’s impression, following the above physical
examination, was history of low back pain, minimal to
moderately symptomatic. Moreover, the examiner found no
reason for the veteran to be considered unemployable due to
his low back pain. While the veteran may not be able to work
as a bricklayer any longer, he was certainly not considered
permanently and totally disabled for his low back pain,
especially in the face of minimal objective findings on
examination.
A VA neurological examination was conducted in January 1998.
It was noted that the veteran’s C-file was available for
review, and that his old medical records documented a history
of low back pain. Since that he time he reportedly had
severe back pain which comes at odd times, generally after he
bends down or attempts to lift something very heavy. This
pain could be very severe, lasting for 2-3 weeks at a time.
When he has had a severe spasm in his back, he is unable to
bend forward during the 2-3 week period. A recent MRI showed
multi-level degenerative joint and disc disease pain.
Additionally, it was noted that the veteran experienced an
episode of numbness and transient weakness of the “left”
face and arm which was felt to be a transient ischemic attack
He was noted at that time to have a mild cardiomyopathy.
Since that time, he has reportedly taken aspirin, and
experienced occasional episodes of dizziness and bilateral
arm “weakness”/fatigue. However, these episodes are “not
terribly bothersome.”
On examination, the veteran was alert and oriented times
three. Full mini-mental status examination was not
performed. The veteran’s cranial nerves II to XII were
functionally intact. The only abnormality on cranial nerves
examination was that he had slightly decreased sensation to
temperature sense on the left half of his face. On motor
examination, the veteran’s strength was 5/5 in the deltoids,
biceps, triceps, wrist flexors, wrist extensors, finger
flexors, finger extensors, hand intrinsics, iliopsoas,
quadriceps, hamstrings, dorsiflexors, and plantar flexors
bilaterally. There was no pronator drift. Muscle bulk and
tone were within normal limits. Sensation was intact to
light touch, pinprick, proprioception, and vibration
throughout. Deep tendon reflexes were 2+ and symmetrical in
the biceps, triceps, brachial radialis, knees and ankles.
The veteran’s cerebellum showed intact finger, nose finger
with normal rapid alternating movements and normal heel shin.
His gait was within normal limits, with normal heel, toe and
tandem walking. The examiner’s overall impression was of
multi-level degenerative joint and degenerative disc disease
resulting in low back pain syndrome and frequent episodes of
severe muscle spasms which had proven debilitating to the
veteran in the past.
By a rating decision dated in April 1998, the RO has
determined that the veteran suffers from the following
disabilities: hemorrhoids, evaluated as 20 percent
disabling; COPD, evaluated as 10 percent disabling;
hypertension, evaluated as 10 percent disabling; status post
right-sided ischemic attack, evaluated as 10 percent
disabling; chronic eczema of face, arms, and legs, evaluated
as 10 percent disabling; chronic gastritis with hyperplastic
polyp, evaluated as 10 percent disabling; low back pain,
evaluated as 10 percent disabling; and fatty liver, which is
assigned a noncompensable (zero percent) disability rating.
The combined rating for these disabilities is 60 percent.
The veteran testified at a videoconference hearing before the
undersigned Board Member in August 1998 that he was
undergoing a lot of ongoing medical treatment, and that much
of this treatment was still in the fact finding mode. He
testified that as a result of his disabilities he could no
longer engage in employment as a bricklayer as it was a very
physical trade. Furthermore, he testified that his
disabilities also prevent him from doing simple activities
like yard work, repair, house work, or play with his
grandkids. His spouse confirmed that the doctors told her
that the veteran could no longer mow the lawn after his last
hospital stay. The veteran described his disabilities as
including dizzy spells, loss of balance, coughing spells,
chest pains, stomach problems, skin problems, and blurred
vision on occasion. He also noted that he had experienced a
light stroke, and that a mass had been found on his liver on
two or three occasions. On inquiry, the veteran stated that
his most debilitating problems were with breathing; lung
problems. It was noted that the veteran was coughing quite
frequently during the course of this hearing.
Following his videoconference hearing, the veteran submitted
additional medical records to the Board which covered the
period from January to September 1998. These records show
treatment for hemorrhoids and breathing problems, among other
things.
Analysis. The Board concludes that the claim for a total and
permanent rating for pension purposes is well grounded within
the meaning of the statute and judicial construction because
the evidence shows that it is plausible. See 38 U.S.C.A. §
5107(a) (West 1991 & Supp. 1998). The VA, therefore, has a
duty to assist the veteran in the development of facts
pertinent to his claim. The VA has had the veteran examined
and obtained medical records from health care providers who
have treated the veteran for his disabilities. There does
not appear to be any pertinent evidence that is not of
record. Consequently, no further assistance to the veteran
is required to comply with the duty to assist.
The Board will now turn to a review of the veteran's
disabilities:
I. Hemorrhoids
Under Diagnostic Code 7336, mild or moderate hemorrhoids are
assigned a non-compensable evaluation. Large or thrombic,
irreducible hemorrhoids with excessive redundant tissue
evidencing frequent recurrences, are assigned a 10 percent
evaluation. A 20 percent evaluation is assigned with
persistent bleeding and with secondary anemia, or with
fissures. 38 C.F.R. § 4.114.
The VA medical records show that the veteran has been treated
on numerous occasions for his hemorrhoids. At the December
1997 VA examination, he had two external hemorrhoids that
were painful and tender. While these hemorrhoids were not
bleeding at the time of the examination, the veteran was
treated for painful and bleeding hemorrhoids in April 1998.
A hemorrhoidectomy was performed later that month.
As the veteran’s hemorrhoids are shown to be a persistent
problem, manifest by bleeding, pain, and tenderness, the
Board is of the opinion that he is entitled to the current
disability rating of 20 percent. It is noted that this is
the highest rating available under Diagnostic Code 7336.
II. COPD
Under Diagnostic Code 6604, a 10 percent rating for COPD
where a pulmonary function study demonstrates a (Forced
Expiratory Volume ) FEV-1 of 71 to 80 percent predicted, or;
(Forced Expiratory Volume in one second to Forced Vital
Capacity) FEV-1/FVC of 71 to 80 percent, or; (Diffusion
Capacity of the Lung for Carbon Monoxide by the Single Breath
Method) DLCO (SB) of 66 to 80 percent of predicted. A 30
percent rating is provided where a pulmonary function study
demonstrates an FEV-1 of 56 to 70 percent predicted, or; FEV-
1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent
of predicted. A 60 percent rating is provided where a
pulmonary function study demonstrates an FEV-1 of 40 to 55
percent predicted, or; FEV-1/FVC of 40 to 55 percent, or;
DLCO (SB) of 40 to 55 percent of predicted, or; maximum
oxygen consumption of 15 to 20 ml/kg/mn. (with
cardiorespiratory limit). A 100 percent rating is provided
where a pulmonary function study demonstrates an FEV-1 of
less than 40 percent of predicted value, or; FEV-1/FVC of
less than 40 percent, or; DLCO (SB) of less than 40 percent
of predicted value, or; maximum exercise capacity less than
15 ml/kg/min. oxygen consumption (with cardiac or respiratory
limitation, or; cor pulmonale (right heart failure), or;
right ventricular hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac catheterization), or; episode(s) if
acute respiratory failure, or; requires outpatient oxygen
therapy. 38 C.F.R. § 4.97.
The veteran was assessed with COPD at the December 1997 VA
examination. The examiner found that pulmonary function
tests showed mild restrictive disease. However, no pulmonary
function tests appear to have been conducted at the December
1997 examination. Such tests were conducted at the Houston
VAMC in October 1997. These tests showed FEV-1 at 76 percent
of the predicted value, FEV-1/FVC at 108 percent of the
predicted value, and DLCO at 43 percent of the predicted
value. Pulmonary function tests were also conducted in
January and March 1998. In January 1998, the tests showed
FEV-1 at 76 percent of the predicted value, FEV-1/FVC at 87
percent of the predicted value, and DLCO at 43 percent of the
predicted value. In March 1998, the veteran sought treatment
after experiencing shortness of breath on exertion of 400
feet. Pulmonary tests showed FEV-1 was at 79 percent of the
predicted value, while DLCO was not done at that time.
While the various FEV-1 and FEV-1/FVC results correspond to
the current 10 percent rating under Diagnostic Code 6604, the
DLCO results in October 1997 and January 1998 both warrant a
60 percent rating. The Board notes that the wording of
Diagnostic Code 6604 shows that each of the aforementioned
criteria for a percent rating is an independent basis for
granting of the requisite evaluations. Therefore, the Board
finds that the veteran is entitled to a 60 percent rating
based upon his DLCO results.
III. Hypertension
Under Diagnostic Code 7101, hypertension is rated 10 percent
disabling when diastolic pressure is predominantly 100 or
more. A minimum 10 percent rating is also assigned when
continuous medication is shown necessary for control of
hypertension with a history of diastolic blood pressure
predominately 100 or more. A 20 percent rating is assigned
for diastolic pressure predominantly 110 or more, with
definite symptoms. A 40 percent rating is assigned for
diastolic pressure predominantly 120 or more, with moderately
severe symptoms. A 60 percent rating is assigned where
diastolic pressure is 130 or more with severe symptoms.
38 C.F.R. § 4.104 (1998).
At the December 1997 VA examination, the veteran’s blood
pressure was 107/68. Moreover, the VA examiner found that
his hypertension was normotensive with medication. This
finding is also shown by the VA medical records. The fact
that the veteran’s dystolic pressure was shown to be less
than 110, and that his hypertension is controlled by
medication corresponds to the criteria for the current
assigned rating of 10 percent. Hence, the Board concludes
that the current rating is proper.
IV. Status Post Right-Sided Ischemic Attack
The RO evaluated this condition pursuant to Diagnostic Code
8008. This Code provides a minimum rating of 10 percent
disabling for residuals of brain thrombosis, which is a
vascular disorder. The next highest, or 100 percent rating,
is assignable for a period of six months following the
occurrence of the vascular incident. 38 C.F.R. § 4.124(a)
(1998).
The evidence on file, including the veteran’s own statement
show that his stroke/ischemic attack occurred in 1995. Thus,
it is clearly more than six months since the occurrence of
the vascular incident. Further, it was noted at the January
1998 VA examination that the veteran experienced an episode
of numbness and transient weakness of the “left” face and
arm which was felt to be a transient ischemic attack. Since
that episode, the veteran has experienced occasional episodes
of dizziness and occasional episodes of dizziness and
occasional episodes of bilateral arm “weakness”/fatigue.
However, these episodes were “not terribly bothersome.”
These findings show that the residuals of the veteran’s
ischemic attack are productive of no more than mild,
intermittent impairment. Consequently, the Board is of the
opinion that the medical evidence does not support a
disability rating in excess of the current 10 percent rating.
V. Eczema
Under Diagnostic Code 7806, eczema which is demonstrated by
exfoliation, exudation or itching, if involving an exposed
surface or extensive area is rated as 10 percent disabling.
A 30 percent rating is assigned with exudation or constant
itching, extensive lesions or marked disfigurement. With
ulceration or extensive exfoliation or crusting, and systemic
nervous manifestations or exception repugnance a 50 percent
rating is assigned. 38 C.F.R. § 4.118 (1998).
The VA medical records show that the veteran has been treated
on numerous occasions for skin problems. He was assessed
with chronic eczema at the December 1997 VA examination. At
that time, the examiner found that the veteran had extremely
dry skin, and evidence of seborrheic dermatitis in the scalp
and ears. However, the examiner did not find that the
veteran’s eczema was manifest by extensive lesions, or marked
disfigurement, or ulceration, or extensive exfoliation or
crusting, or systemic nervous manifestations, or exception
repugnance. Hence, the Board finds that the medical evidence
does not show that the veteran is entitled to a disability
rating in excess of the currently assigned 10 percent rating
for his eczema.
VI. Gastritis
Under Diagnostic Code 7307, chronic hypertrophic gastritis
(identified by gastroscope), with small nodular lesions, and
symptoms, warrants a 10 percent evaluation. Chronic
hypertrophic gastritis (identified by gastroscope), with
multiple small eroded or ulcerated areas, and symptoms,
warrants a 30 percent rating. Chronic hypertrophic gastritis
(identified by gastroscope), with severe hemorrhages, or
large ulcerated or eroded areas, warrants a 60 percent
rating. Atrophic gastritis, with a complication of a number
of diseases, including pernicious anemia, is rated on the
underlying condition. 38 C.F.R. § 4.114.
At the December 1997 VA examination, the examiner found the
veteran’s abdomen to be soft with no organomegaly, no DVA
tenderness, and bowel sounds normal. He was assessed with a
history of hyperplastic polyp on colonoscopy. The Board is
of the opinion that the fact that the gastritis has been
found to be a chronic condition warrants at least a
compensable disability rating. However, the VA examiner did
not find that the veteran’s chronic gastritis was manifest by
multiple small eroded or ulcerated areas, and symptoms; or
severe hemorrhages, or large ulcerated or eroded areas.
Therefore, the veteran is not entitled to a disability rating
in excess of the current 10 percent rating for this
disability.
VII. Low Back Disability
The RO evaluated the veteran’s low back disability pursuant
to Diagnostic Codes 5003 and 5295.
Under Diagnostic Code 5003, degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved.
Diagnostic Code 5292 provides for the evaluation of
limitation of motion of the lumbar spine. When the
limitation of motion of the lumbar spine is slight, a 10
percent rating is provided. When the limitation of motion is
moderate, a 20 percent rating is provided. When the
limitation of motion is severe, a rating of 40 percent is
warranted.
Diagnostic Code 5295 provides for the evaluation of
lumbosacral strain. With characteristic pain on motion, a
rating of 10 percent is provided. With muscle spasm on
extreme forward bending, loss of lateral spine motion,
unilateral, in a standing position, a rating of 20 percent is
provided. When severe with listing of the whole spine to
opposite side, positive Goldthwait's sign, marked limitation
of forward bending in a standing position, loss of lateral
motion with osteoarthritic changes, or narrowing or
irregularity of the joint space, or some of the above with
abnormal mobility on forced motion, a rating of 40 percent is
provided.
As there is some evidence of degenerative disc disease, the
veteran’s low back disability could also be evaluated under
Diagnostic Code 5293, which provides for evaluation of
intervertebral disc syndrome. Intervertebral disc syndrome
is assigned a noncompensable rating when it postoperative,
cured. A 10 percent evaluation is assigned when it is mild.
Moderate symptoms with recurring attacks of pain are assigned
a 20 percent evaluation. Severe symptoms, with recurring
attacks and intermittent relief are assigned a 40 percent
evaluation. Pronounced symptoms, that are persistent and
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc, with little intermittent relief are assigned a 60
percent evaluation. The maximum evaluation available under
Diagnostic Code 5293 is 60 percent.
A review of the VA medical records contain little pertinent
information regarding the veteran’s low back disability. The
December 1997 VA general medical examination assessed chronic
low back pain, while the VA bones examination had an
impression of low back pain, minimally to moderately
symptomatic. It is noted that the VA bones examiner opined
that the veteran was not permanently and totally disabled
because of his back pain, especially in the face of minimal
objective findings on examination. The January 1998 VA
neurological examination had an impression of multi-level
degenerative joint and degenerative disc disease resulting in
low back pain syndrome and frequent episodes of severe muscle
spasms which had proven debilitating to the veteran in the
past.
The Board is of the opinion that even though the veteran had
little objective findings of low back impairment on any of
the above VA examinations, both the December 1997 bones
examination and January 1998 neurological examination
indicate that the veteran’s back problems should be evaluated
as more severe than the current 10 percent rating. The
finding that the veteran’s back disability is minimally to
moderately symptomatic on the December 1997 bones examination
indicates that condition falls in-between the criteria for 10
and 20 percent ratings under both Diagnostic Codes 5292 and
5293. Taking into consideration the doctrine of reasonable
doubt, the Board finds that the veteran’s low back disability
more nearly approximates the criteria for 20 percent under
these Codes. 38 C.F.R. §§ 3.102, 4.3 (1998). Additionally,
the Board notes that none of the veteran’s VA examinations
found that his low back disability was manifest by listing of
the whole spine to opposite side, positive Goldthwait's sign,
marked limitation of forward bending in a standing position,
loss of lateral motion with osteoarthritic changes, or
narrowing or irregularity of the joint space, or some of the
above with abnormal mobility on forced motion. Consequently,
the veteran would not be entitled to an evaluation in excess
of 20 percent under Diagnostic Code 5295. Therefore, the
Board concludes that the veteran’s low back disability should
be evaluated as 20 percent disabling.
VIII. Fatty Liver
The RO assigned the veteran a noncompensable evaluation for a
gastrointestinal disorder pursuant to Diagnostic Code 7399,
which reflects an unlisted disease that requires rating by
analogy. 38 C.F.R. § 4.27. As such, the veteran’s fatty
liver is rated under a closely analogous criteria found at
Diagnostic Codes 7311-7313 and 7345. See 38 C.F.R. § 4.20.
Diagnostic Code 7311 refers to injury of the liver. Under
this Code a non-compensable rating is assigned for healed
injury with no residuals. Otherwise, it is rated according
to the criteria assigned to Diagnostic Code 7301, peritoneal
adhesions. Under this Code, a noncompensable rating is
assigned for mild impairment. A 10 percent rating is
assigned for moderate impairment characterized by p8llin pain
on attempting work or aggravated by movements of the body, or
occasional episodes of colic pain, nausea, constipation
(perhaps alternating with diarrhea) or abdominal distention.
A 30 percent rating is indicative of moderately severe
impairment characterized by partial obstruction manifested by
delayed motility of barium meal and less frequent and less
prolonged episodes of pain. A 50 percent rating is assigned
for severe impairment as characterized by definite partial
obstruction shown by X-ray with frequent and prolonged
episodes of severe colic distention, nausea or vomiting,
ruptured appendix, perforated ulcer or operation with
drainage. 38 C.F.R. § 4.114.
Under the criteria of Diagnostic Code 7312, entitled “Liver,
cirrhosis of,” a 30 percent disability rating is warranted
where the condition is moderate with dilation of superficial
abdominal veins, chronic dyspepsia, slight loss of weight or
impairment of health. A 50 percent rating is warranted where
there are moderately severe symptoms with the liver
definitely enlarged with abdominal distention due to early
ascites and with muscle wasting and loss of strength. A 70
percent rating is warranted for severe cirrhosis with ascites
requiring infrequent tapping, or recurrent hemorrhage from
esophageal varices, aggravated symptoms and impaired health.
A 100 percent rating is appropriate where the cirrhosis is
pronounced with aggravation of the symptoms for moderate and
severe, necessitating frequent tapping. 38 C.F.R. § 4.114.
Under the criteria of Diagnostic Code 7312, entitled “Liver,
abscess of, residuals of,” moderate symptoms are assigned a
20 percent rating. Severe symptoms warrant a 30 percent
rating. 38 C.F.R. § 4.114.
As the VA medical records show the veteran has also been
treated for complaints of hepatitis A, his fatty liver may
also be evaluated under Diagnostic Code 7345, entitled
“Hepatitis, infectious.” Under this Code, a noncompensable
disability rating is warranted where the hepatitis is healed
and nonsymptomatic and a 10 percent rating is appropriate
with demonstrable liver damage with mild gastrointestinal
disturbance. A 30 percent rating is warranted for minimal
liver damage with associated fatigue, anxiety, and
gastrointestinal disturbance of lesser degree and frequency
but necessitating dietary restriction or other therapeutic
measures. A 60 percent rating is appropriate where there is
moderate liver damage and disabling recurrent episodes of
gastrointestinal disturbance, fatigue, and mental depression.
A 100 percent rating is warranted for marked liver damage
manifest by liver function test and marked gastrointestinal
symptoms, or with episodes of several weeks duration
aggregating three or more a year and accompanied by disabling
symptoms requiring rest therapy. 38 C.F.R. § 4.114.
In May 1997, the veteran had an ABD ultrasound which showed
that he had a “fatty liver, unable to visualize [the]
pancreas well.” The December 1997 VA examiner noted that an
ultrasound had shown probable fatty infiltration of the
liver, and the veteran testified in August 1998 that a mass
on his liver had been found on two or three occasions.
However, a review of the medical evidence does not show that
this fatty liver is productive of any impairment. Thus, the
Board is of the opinion that the veteran would not be
entitled to a compensable disability rating under any of the
above Diagnostic Codes. Consequently, the Board finds that
the current noncompensable rating is the proper evaluation.
VIII. Permanent and Total Rating for Pension
A veteran who has served for 90 days or more during a period
of war is entitled to VA non-service-connected pension if he
or she is permanently and totally disabled from non-service-
connected disability. 38 U.S.C.A. § 1521. A veteran is
permanently and totally disabled if he or she suffers from a
disability which would render it impossible for the average
person to follow a substantially gainful occupation, and it
is reasonably certain that such disability will continue
throughout the life of the veteran. 38 U.S.C.A. § 1502(a).
VA regulations describe the requirements for permanent, total
disability. 38 C.F.R. § 3.340(b). Additional rating
criteria for permanent and total disability ratings for
pension purposes appear in 38 C.F.R. § 3.342.
A veteran is eligible to be rated permanently and totally
disabled for pension purposes under schedular criteria which
require, at a minimum, permanent disabilities with a rating
of at least 60% for a single disability, or at least 70% for
combined disabilities. 38 C.F.R. §§ 4.16(a), 4.17. A
veteran who does not meet the schedular criteria for
permanent and total disability may nevertheless be awarded
pension if he or she meets extra-schedular rating standards
of unemployability "by reason of his or her disability(ies),
age, occupational background and other related factors". 38
C.F.R. § 3.321(b)(2).
In making a determination of permanent and total disability
for pension purposes, the RO must first apply the percentage
standards of 38 C.F.R. § 4.16(a) and the other requirements
of 38 C.F.R. § 4.17. If a permanent and total disability
rating is not warranted under these criteria, consideration
is given to the extra-schedular factors under 38 C.F.R. §§
3.321(b)(2), 4.17(b). See Roberts v. Derwinski, 2 Vet. App.
387, 390 (1992) (whether a permanent and total disability
rating could have been assigned on an extra-schedular basis
under 38 C.F.R. § 3.321(b)(2) should have been considered).
For the reasons stated above, the Board found that the
veteran is entitled to a 60 percent rating for his COPD, and
a 20 percent rating for his low back disability. As a
result, he is entitled to a combined disability evaluation of
80 percent for his identified disabilities. 38 C.F.R.
§ 4.25. Therefore, the veteran clearly meets the percentage
standards of 38 C.F.R. § 4.16(a).
The Board notes that the veteran stated at the December 1997
VA examination that he could not walk more than 700 to 1,000
feet before he had to stop due to shortness of breath, and
that he became tired and dizzy whenever he tried to do
anything for any length of time more than three of four
minutes. Also, he was treated for shortness of breath in
March 1998 after exertion of 400 feet. In short, this
evidence, including the veteran’s hearing testimony, shows
that the veteran experiences problems on engaging in even
simple activities. Taking into account this evidence, the
fact that the veteran has been receiving medical treatment
for numerous disabilities, and the benefit of the doubt
doctrine (38 C.F.R. § 3.102), the Board is of the opinion
that the veteran's disabilities preclude him from engaging in
substantially gainful employment considering his age,
education and employment experience. Therefore, the Board
concludes that the veteran is entitled to a permanent and
total rating for pension purposes.
ORDER
Entitlement to a permanent and total disability rating for
pension purposes is granted.
Gary L. Gick
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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